Argument Preview

Four cases being argued in April at the Federal Circuit attracted amicus briefs. One of these cases is Backertop Licensing LLC v. Canary Connect Inc. In it, the Federal Circuit will review a determination by a judge in the District of Delaware that an out-of-state non-party was in contempt of court for disregarding an order requiring her to testify at a hearing. This is our argument preview.

In its opening brief, Backertop Licensing LLC argues “Federal Rule of Civil Procedure 45(c) provides that an officer of an entity-party can only be compelled to attend a court proceeding in the State where the officer resides, works, or does substantial business.” It contends this geographical limit on the district court’s “inherent powers” means its order “requiring that LaPray travel to Delaware from Texas to testify is void on its face and cannot provide the basis for a finding of contempt.” 

Backertop Licensing contends “LaPray was entitled to raise the validity of the underlying Order at the contempt proceeding,” because the underlying order “was an unappealable interlocutory order, the collateral bar doctrine does not apply to civil proceedings, and the Order is transparently invalid.” Moreover, it argues, the Federal Circuit has the discretion to address pure questions of law that were not properly raised to prevent injustice.

W. David Maxwell, court-appointed amicus curiae counsel, submitted a brief in support of the district court’s actions. In it, he agrees the Federal Circuit has jurisdiction to review “both the District Court’s contempt order and the underlying order for Ms. LaPray to appear in person.” On the merits, however, Maxwell argues the district court’s order to appear was not an abuse of discretion. He contends the order falls within the inherent powers of district courts, which include “the power to compel a non-party’s appearance and to investigate misconduct and fraud.” He asserts that these powers only “(1) may not contradict an express limitation on its powers contained in a rule or statute; and (2) must be a reasonable response to the circumstances.” Maxwell contends the district court was correct to find that Rule 45 does not expressly limit district courts’ inherent powers because it “only applies to subpoenas issued by a clerk to a party or by an attorney—not to sua sponte orders” like the order to appear that is at issue in this appeal. Additionally, he argues, “[t]he District Court reasonably ordered Ms. LaPray’s appearance to . . . investigate potential misconduct involving a corporate party of which she is the sole representative.” 

In its reply brief, Backertop Licensing argues the district court’s order to appear was a subpoena under Rule 45 and was, therefore, subject to its geographical limitations. Furthermore, it argues, “[t]he fact that Federal Rule of Civil Procedure 45 does not expressly refer to court orders is irrelevant in light of history.” Backertop Licensing argues that nothing in the rule or its judicial precedent indicates intent to limit subpoenas to “U.S. Court Form AO-88.” Moreover, it argues, amicus counsel incorrectly focuses on “whether conduct covered by the Rules is intertwined with conduct that only the court’s inherent power could address.” The correct question, according to Backertop Licensing, is “whether a court can exercise its inherent authority when the exercise of that authority is in conflict with a rule or statute or the Constitution.” According to Backertop Licensing, district courts’ inherent powers are expressly limited not only by Rule 45 but also by the Due Process Clause of the Fifth Amendment. 

Oral argument will be heard on Monday, April 1. We will keep track of this case and report on any developments.